Master Subscription Agreement
This Agreement governs your acquisition and use of our Services.
If you registered for a free trial for our Services, the applicable provisions of this Agreement will also govern that free trial.
Acceptance of terms
By accepting this Agreement, either by clicking a box indicating your acceptance, by executing an order form that references this Agreement, or by accessing or using a Service or authorizing or permitting any User to access or use a Service, You agree to be bound by this Agreement.
If you are entering into this Agreement on behalf of a company or other legal entity, you represent that you have the authority to bind such entity and its affiliates to these terms and conditions, in which case the terms "You" or "Your" shall refer to such entity and its affiliates. If you do not have such authority, or if you do not agree with these terms and conditions, you must not accept this Agreement and may not use the Services.
Additional Terms for Add-On Services
If you purchase Add-On Services not mentioned in this Agreement from us or a third-party, Additional Terms may apply.
You may not access the Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.
This Agreement was last updated on 1 December 2016. It is effective between You and Us as of the date of You accepting this Agreement.
Table of Contents
- Free Trial
- Our Responsibilities
- Use of the Services
- Third-Party Service Providers
- Billing, Plan Modifications and Payments
- Proprietary Rights and Licenses
- Data Security and Privacy
- Representations, Warranties, Exclusive Remedies and Disclaimers
- Mutual Indemnification
- Limitation of Liability
- Cancellation and Termination
- Contracting Party,, Notices, Governing Law and Jurisdiction
- General Provisions
"Additional Terms" means the additional terms and conditions that are included in or incorporated on an Order Form (e.g. when a Add-On Service is purchased) or applicable to Add-On Services when purchased by You.
"Add-On Services" means add-on services provided by Yieldr to be used in conjunction with the Services.
"Affiliate" means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity.
"Control" for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
"Agreement" means this Master Subscription Agreement.
"Beta Services" means Yieldr services or functionality that may be made available to You to try at your option at no additional charge and which is clearly designated as beta, pilot, limited release, developer preview, non-production, evaluation, or by a similar description.
"Documentation" means the applicable Service's documentation, including its usage guides and policies, as updated from time to time, accessible on Our website or via login for the Service.
"Order Form" means an ordering document or online order specifying the Services to be provided hereunder that is entered into between You and Us or any of Our Affiliates, including any addenda and supplements thereto. By entering into an Order Form hereunder, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto.
"Purchased Services" means Services that You or Your Affiliate purchase under the Agreement or an Order Form, as distinguished from those provided pursuant to a free trial.
"Service Plan" packaged service plan(s) and the functionality and services associated therewith as detailed on Our site for the Services to which You subscribe.
"Services" means the products and services that are ordered by You under the Agreement or an Order Form or provided to You under a free trial, and made available online by Us, including associated Yieldr offline or mobile components as described in the Documentation. "Services" include any purchased Add-On Services but exclude Third-Party Services.
"Subscription Term" means the period during which You have agreed to subscribe to a Service.
"Third-Party Services" means third-party Web-based, data, mobile, offline or other service or software application functionality that is provided by a third party and that interoperates with the Service.
"User" means an individual who is authorized by You to use a Service and to whom You (or, when applicable, Us at Your request) have supplied a user identification and password (for Services utilizing authentication). Users may include, for example, Your employees, consultants, contractors and agents.
"Uniques" means a tracked event, as more fully described in the Service Plan.
"We," "Us" or "Our" means the Yieldr company described in Section 14 (Contracting Party, Notices, Governing Law and Jurisdiction).
"You" or "Your" means the company or other legal entity for which you are accepting this Agreement, and Affiliates of that company or entity which have signed Order Forms.
"Your Data" means electronic data and information You made available to Us to use as part of Our providing the Services, including Beta Services, as more fully described in the Documentation.
2. FREE TRIAL
2.1 If You register on Our website for a free trial, We will make one or more Services available to You on a trial basis free of charge until the earlier of (a) the end of the free trial period for which You registered to use the applicable Service(s), or (b) the start date of any Purchased Service subscriptions ordered by You for such Service(s), or (c) termination by Us in our sole discretion. Additional trial terms and conditions may appear on the trial registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.
2.2 Any data you enter into the services, and any customizations made to the services by or for you, during your free trial will be permanently lost unless you purchase a subscription to the same services as those covered by the trial, purchase applicable upgraded services, or export such data, before the end of the trial period. It is possible that data entered or customizations made during the free trial to a service is not available if you purchase a service that would be a downgrade from that covered by the trial.
2.3 Notwithstanding section 9 (representations, warranties, exclusive remedies and disclaimers), during the free trial the services are provided "as-is" and "as-available" and could contain defects, faults, mistakes and other deficiencies. We expressly disclaim all warranties of any kind, express or implied, including, but not limited to, warranties of merchantability, fitness for a particular purposes and non-infringement.
2.4 It is Your responsibility to review the applicable Service's Documentation during the trial period so that You become familiar with the features and functions of the Services before You make Your purchase.
3. OUR RESPONSIBILITIES
3.1 Provision of Purchased Services During the Subscription Term and subject to compliance by You and Your Users with this Agreement, You have the limited right to access and use the Services consistent with the Service Plan(s) that You subscribe to, together with all applicable Add-On Services, for Your internal business purposes. We will (a) make the Services and any Third-Party Services purchased through Us available to You pursuant to this Agreement and any applicable Order Forms, (b) provide applicable support for the Services to You consistent with the Service Plan(s) that You subscribe to, (c) use commercially reasonable efforts to have 99.9% availability of the online Services, except for: (i) planned downtime (of which We shall give advance electronic notice as provided in the Documentation), and (ii) any unavailability caused by circumstances beyond Our reasonable control, including, but not limited to, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem (other than one involving Our employees), Internet service provider failure or delay, or denial of service attack.
3.2 Our Personnel We will be responsible for the performance of Our personnel (including Our employees and contractors) and their compliance with Our obligations under this Agreement, except as otherwise specified herein.
3.3 Beta Services From time to time, We may make Beta Services available to You at no charge. You may choose to try such Beta Services or not in Your sole discretion. Beta Services are intended for evaluation purposes and not for production use, are not supported, and may be subject to additional terms. Beta Services are not considered "Services" under this Agreement, however, all restrictions, Our reservation of rights and Your obligations concerning the Services, and use of any related Third-Party Services, shall apply equally to Your use of Beta Services. Unless otherwise stated, any Beta Services trial period will expire upon the earlier of one year from the trial start date or the date that a version of the Beta Services becomes generally available without the applicable Beta Services designation. We may discontinue Beta Services at any time in Our sole discretion and may never make them generally available. We will have no liability for any harm or damage arising out of or in connection with a Beta Service.
3.4 Add-On Services We may make Add-On Services available to You for an additional charge. You may choose to purchase such Add-On Services or not in Your sole discretion. Separate additional terms apply to such Add-on Services and You being able to use the Add-On Services may be made dependent on You explicitly accepting such Additional Terms.
4. USE OF THE SERVICES
4.1 Subscriptions Unless otherwise provided in the applicable Order Form or Documentation, (a) Services and access to Third-Party Data are purchased as subscriptions, (b) subscriptions may be added during a Subscription Term at the same pricing as the underlying subscription pricing, prorated for the portion of that Subscription Term remaining at the time the subscriptions are added, and (c) any added subscriptions will terminate on the same date as the underlying subscriptions.
4.2 Usage Rights and Limits Services and Third-Party Services and associated pricing are based on and subject to usage limits, including, for example, the number of Uniques and other quantities specified in the Service Plans, Order Forms and Documentation. If You exceed a contractual usage limit, We may work with You to seek to reduce Your usage so that it conforms to that limit. If, notwithstanding Our efforts, You are unable or unwilling to abide by a contractual usage limit, You will execute an Order Form for additional quantities of the applicable Services or Third-Party Service promptly upon Our request, and/or pay any invoice for excess usage in accordance with Section 6.2 (Invoicing and Payment).
4.3 Your Responsibilities You will (a) be responsible and liable for Users' compliance with this Agreement, Documentation and Order Forms (including all applicable Additional Terms), (b) be responsible for the accuracy, quality and legality of Your Data and the means by which You acquired Your Data, (c) use commercially reasonable efforts to prevent unauthorized access to or use of Services and Third-Party Services, which includes keeping account and API credentials safe, and notify Us promptly of any such unauthorized access or use, (d) use Services and Third-Party Services only in accordance with this Agreement, Documentation, Order Forms and applicable laws and government regulations, and (e) comply with terms of service of any Third-Party Services with which You use Services.
4.4 Selecting the Services You are responsible for the selection, use and proper application in Your organization of the Services, as well as for securing Your Data. You understand the functional characteristics of the Services and are responsible for making sure the Services meet Your requirements and wishes. In the case of any ambiguity You can request information from Us before concluding the Agreement or ask a third-party expert for advice.
4.5 Usage Restrictions You will not (a) make any Service or Third-Party Service available to, or use any Service or Third-Party Service for the benefit of, anyone other than You or Users, unless expressly stated otherwise in an Order Form or the Documentation, (b) sell, resell, license, sublicense, distribute, make available, rent or lease any Service or Third-Party Data, or include any Service or Third-Party Service in a service bureau or outsourcing offering, (c) use a Service or Third-Party Service to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use a Service or Third-Party Service to store or transmit code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses, (e) interfere with or disrupt the integrity or performance of any Service or third-party data contained therein, (f) attempt to gain unauthorized access to any Service or Third-Party Service or its related systems or networks, (g) permit direct or indirect access to or use of any Service or Third-Party Service in a way that circumvents a contractual usage limit, or use any of Our Services to access or use any of Our intellectual property except as permitted under this Agreement, an Order Form, or the Documentation, (h) copy a Service or any part, feature, function or user interface thereof, (i) copy third-party data except as permitted herein or in an Order Form or the Documentation, (j) frame or mirror any part of any Service or Third-Party Services, other than framing on Your own intranets or otherwise for Your own internal business purposes or as permitted in the Documentation, (k) access any Service or third-party data in order to build a competitive product or service or to benchmark with a non-Yieldr product or service, or (l) reverse engineer, decompile, disassemble or translate the Services or to make any attempt to access the source code in order to create derivative products of the Services, other than as permitted by law. This Agreement grants You an authorisation to access and use the Purchased Services on a software-as-a-service basis and this is not a copyright licence; accordingly, the foregoing restrictions are absolute and not subject to the exceptions set out in section 296A of the Copyright, Designs and Patents Act 1988.
4.6 Suspension and removal We may suspend Your use of the Services and any Third-Party Services, temporarily or permanently, in part or in whole, and remove Your access to the Services and Your Data in case of (a) Any use of the Services in breach of this Agreement, Documentation or Order Forms, by You or Users that in Our judgment threatens the security, integrity or availability of Our services, may result in Our immediate suspension of the Services, however We will use commercially reasonable efforts in the circumstances to provide You with notice and an opportunity to remedy such violation or threat prior to such suspension, (b) if We are required by a licensor to remove Third-Party Services, or receive information that Third-Party Services provided to You may violate applicable law or third-party rights, (c) in the cases described under Section 6.4 (Suspension of Service and Acceleration).
5. THIRD-PARTY SERVICE PROVIDERS
5.1 Third-Party Services and Separate Terms We or third parties may make available third-party products or services, including, for example, Third-Party Services and implementation and other consulting services. Any acquisition by You of such products or services, and any exchange of data between You and any non-Yieldr provider, product or service is solely between You and the applicable non-Yieldr provider and the third party provider's terms and conditions apply between You and the relevant third party in connection with those products and/or services in addition to the terms of this Agreement. You must accept the third party provider's terms to receive their products and services. We are not liable for any third party product or service save where expressly agreed by Us in writing and clearly stated.
5.2 Third-Party Services and Your Data If You choose to use a Third-Party Service with a Service, You grant Us permission to allow the Third-Party Service and its provider to access Your Data as required for the interoperation of that Third-Party Service with the Service. We are not responsible or liable for any disclosure, modification or deletion of Your Data resulting from access by such Third-Party Service or its provider. You warrant that you are permitted to grant this permission to Us.
5.3 Integration with Third-Party Services The Services may contain features designed to interoperate with Third-Party Services. To use such features, You may be required to obtain access to such Third-Party Services from their providers, and may be required to grant Us access to Your account(s) for such Third-Party Services. We cannot guarantee the continued availability of such Service features, and may cease providing them without entitling You to any refund, credit, or other compensation, if for example and without limitation, the provider of such Third-Party Services ceases to make the Third-Party Services available for interoperation with the corresponding Service features in a manner acceptable to Us. We do not warrant or support Third-Party Services or other non-Yieldr products or services, whether or not they are designated by Us as "certified" or otherwise, unless expressly provided otherwise in an Order Form.
6. BILLING, PLAN MODIFICATIONS AND PAYMENTS
6.1 Fees You will pay all fees specified in Order Forms and Our Service Plans. Fees consist of a (combination of) (i) fixed fees for Services and Third-Party Services subscriptions purchased, charged independent of actual usage, and (ii) additional fees for Services and Third-Party Services based on actual usage (volume), as measured by Our systems and that of the relevant providers of Third-Party Services. Payment obligations are non-cancelable and advance fixed fees paid are non-refundable and quantities or service levels purchased cannot be decreased during the relevant subscription term.
6.2 Invoicing and Payment You will provide Us with valid and updated credit card information, (SEPA) direct debit authorization, or a valid purchase order or alternative document reasonably acceptable to Us. If You provide credit card information to Us, You authorize Us to charge such credit card for all Purchased Services used by You, as per the Service Plans and any separate Order Forms for the initial Subscription Term and any renewal Subscription Term(s) as set forth in Section 13.2 (Term of Purchased Subscriptions). Such charges shall be made in advance, either monthly, annually or in accordance with any different billing frequency stated in the applicable Order Form or Service Plan. If the Order Form or Service Plan specifies that payment will be by a method other than a credit card or (SEPA) direct debit, We will invoice You in advance and otherwise in accordance with the relevant Order Form or Service Plan. Unless otherwise stated in the Order Form or Service Plan, invoiced charges are due net 30 days from the invoice date. You are responsible for providing complete and accurate billing and contact information to Us and notifying Us of any changes to such information.
6.3 Advance Payment Should We at any time have any doubts about Your creditworthiness, We are entitled, prior to any (further) performance of the Services, to require that You make an advance payment of a part or the whole of the agreed price and/or require some other kind of guarantee. Advance payments are not refundable.
6.4 Overdue Charges If any invoiced amount is not received by Us by the due date, then without limiting Our rights or remedies, (a) those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, and/or (b) We may condition future subscription renewals and Order Forms on payment terms shorter than those specified in Section 6.2 (Invoicing and Payment).
6.5 Suspension of Service and Acceleration If any amount owing by You under this or any other agreement for Our services is 30 or more days overdue (or 10 or more days overdue in the case of amounts You have authorized Us to charge to Your credit card), We may, without limiting Our other rights and remedies, accelerate Your unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend Our services to You until such amounts are paid in full. Other than for customers paying by credit card or (SEPA) direct debit whose payment has been declined, We will give You at least 10 days' prior notice that Your account is overdue, in accordance with Section 14.2 (Manner of Giving Notice) for billing notices, before suspending services to You. Likewise, if You terminate all or part of the Agreement before the end of the Subscription Term, all outstanding fees for the remainder of the Subscription Term and for any other Services become immediately due and payable, without the need to serve any notice of default. In the event no termination fee is agreed upon in advance, You will pay to Us at once an amount that equals the monthly fee We received in the month prior to the termination by You, times the remaining months of the Subscription Term.
6.6 Payment Disputes We will not exercise Our rights under Section 6.4 (Overdue Charges) or 6.5 (Suspension of Service and Acceleration) above if You are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute.
6.7 Taxes Our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, "Taxes"). You are responsible for paying all Taxes associated with Your purchases hereunder. If We have the legal obligation to pay or collect Taxes for which You are responsible under this Section 6.7, We will invoice You and You will pay that amount unless You provide Us with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, We are solely responsible for taxes assessable against Us based on Our income, property and employees.
6.8 Future Functionality You agree that Your purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Us regarding future functionality or features.
7. PROPRIETARY RIGHTS AND LICENSES
7.1 Reservation of Rights Subject to the limited rights expressly granted hereunder, We and Our licensors and providers of Third-Party Services reserve all of Our/their right, title and interest in and to the Services, the Documentation and Third-Party Services, including all of Our/their related intellectual property rights, including copyrights, patents, trademarks and know-how, including latent registration rights thereof. No rights are granted to You hereunder other than as expressly set forth herein.
7.2 License to Host Your Data You grant Us, Our Affiliates and applicable contractors a worldwide, limited-term license to host, copy, transmit and display Your Data for use by You with the Services, as reasonably necessary for Us to provide the Services in accordance with this Agreement. Subject to the limited licenses granted herein, We acquire no right, title or interest from You or Your licensors under this Agreement in or to any of Your Data.
7.3 Keep Notices You are not permitted to remove or change any copyright notices or trademark designations from Our materials, including statements regarding the confidential nature of Our materials and the confidentiality obligations regarding it.
7.4 License to Use Feedback You grant to Us and Our Affiliates a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into Our and/or Our Affiliates' services any suggestion, enhancement request, recommendation, correction or other feedback provided by You or Users relating to the operation of Our or Our Affiliates' services.
8. DATA SECURITY AND PRIVACY
8.1 We will maintain administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your Data, as described in the Documentation. Those safeguards will include, but will not be limited to, measures for preventing access, use, modification or disclosure of Your Data by Our personnel except (a) to provide the Purchased Services and prevent or address service or technical problems, (b) as compelled by law in accordance with Section 9.3 (Compelled Disclosure) below, or (c) as You expressly permit in writing. While we take industry standard measures to prevent loss of data, we cannot however guarantee against any loss or corruption of data, including Your Data, or that the Services are available without interruption or are error-free. You are responsible for keeping a back-up of Your Data and for any desired or needed contingency plans. We are not liable for any loss or corruption of Data save that in the event of any loss or corruption of Data we shall use commercially reasonable endeavours to restore your Data to the last back up on Our systems, if any. See Section 13.5 on how to export Your Data at the end of the Agreement.
8.2 Where Your use of the Services includes the processing of personal data (as described in the EU Data Protection Directive 95/46/EC and the EU Data Protection Regulation (EU) 2016/679) You shall be the data controller and We act as processor of any personal data processed via the Services, including Your Data. You shall ensure that you are entitled to transfer the relevant personal data to Us so that We may lawfully process the personal data in accordance with the Agreement and Your instructions on Your behalf. We will meet our regulatory obligations as a processor of any such personal data, including taking appropriate technical and organizational measures against unauthorized or unlawful processing of personal data and against accidental loss or destruction of, or damage to, such personal data, and the obligation not to process such personal data other than on instruction of You. You acknowledge and accept that personal data may be transferred or stored outside of the EEA or the country where You are located in order to carry out the Services and Our other obligations under this Agreement.
8.3 You are responsible for obtaining any required informed prior consent from users or subscribers for the processing of such personal data, and the storing of information or gaining access to information stored on terminal equipment (as described in the EU ePrivacy Directive 2002/58/EC and any successor legislation and the EU Data Protection Regulation (EU) 2016/679), also on behalf of Us. You warrant and undertake that You have obtained such consent.
9.1 Definition of Confidential Information. "Confidential Information" means all information disclosed by a party ("Disclosing Party") to the other party ("Receiving Party"), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Your Confidential Information includes Your Data; Our Confidential Information includes the Services and Third-Party Services provided via Us; and Confidential Information of each party includes the terms and conditions of this Agreement and all Order Forms (including pricing) and Service Plans, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
9.2 The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to (i) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement and (ii) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates' employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections not materially less protective of the Confidential Information than those herein. Neither party will disclose the terms of this Agreement or any Order Form to any third party other than its Affiliates, legal counsel and accountants without the other party's prior written consent, provided that a party that makes any such disclosure to its Affiliate, legal counsel or accountants will remain responsible for such Affiliate's, legal counsel's or accountant's compliance with this "Confidentiality" section. Notwithstanding the foregoing, We may disclose the terms of this Agreement and any applicable Order Form or Service Plan to a subcontractor or provider of Third-Party Services to the extent necessary to perform Our obligations to You under this Agreement, under terms of confidentiality materially as protective as set forth herein.
9.3 Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party's Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.
9.4 Systems Monitoring. You acknowledge and accept that We can use the data moving through the Services, including Your Data, to monitor performance of the Services and pro-actively identify and solve issues, and to generate and use aggregated service statistics without personal data.
10. REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS
10.1 Representations Each party represents that it has validly entered into this Agreement and has the legal power to do so.
10.2 Our Warranties We warrant that during an applicable subscription term (a) this Agreement, the Order Forms, the Service Plans and the Documentation will accurately describe the applicable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your Data, (b) We will not materially decrease the overall security of the Services, (c) the Services will perform materially in accordance with the applicable Documentation, and (d) subject to the "Integration with Third-Party Services" section above, We will not materially decrease the overall functionality of the Services without due notice. For any breach of a warranty above, Your sole and exclusive remedies are those described in the "Termination" and "Refund or Payment upon Termination" sections below. While We will perform Our obligations under the Agreement in a professional and workmanlike manner, we cannot however guarantee that the Services are available at all times, without interruption or errors, or that all errors will be solved.
10.3 Disclaimers Except as expressly provided herein, neither party makes any warranty of any kind, whether express, implied, statutory or otherwise, and each party specifically disclaims all implied warranties, including any implied warranty of merchantability, fitness for a particular purpose or non-infringement, to the maximum extent permitted by applicable law. Content and beta services are provided "as is" and "as-available" exclusive of any warranty whatsoever. Each party disclaims all liability and indemnification obligations for any harm or damages caused by any third-party hosting providers.
11. MUTUAL INDEMNIFICATION
11.1 Indemnification by Us We will defend and indemnify You against any claim, action, demand, suit, proceeding, losses, damages, expenses and costs (including, without limitation, court costs and reasonable legal fees) arising out of or in connection with a third party alleging that any Service infringes or misappropriates such third party's intellectual property rights (a "Claim Against You") provided You (a) promptly give Us written notice of the Claim Against You, (b) give Us sole control of the defense and settlement of the Claim Against You (except that We may not settle any Claim Against You unless it unconditionally releases You of all liability), and (c) give Us all reasonable assistance, at Our expense. If We receive information about an infringement or misappropriation claim related to a Service, We may in Our discretion and at no cost to You (i) modify the Services so that they are no longer claimed to infringe or misappropriate, without breaching Our warranties under "Our Warranties" above, (ii) obtain a license for Your continued use of that Service in accordance with this Agreement, or (iii) terminate Your subscriptions for that Service upon 30 days' written notice and refund You any prepaid fees covering the remainder of the term of the terminated subscriptions. The above defense and indemnification obligations do not apply to the extent a Claim Against You arises from Third-Party Services or Your use of the Services in violation of this Agreement, the Documentation or applicable Order Forms or Service Plan descriptions or a modification of the Services or Documentation by anyone other than Us.
11.2 Indemnification by You You will defend and indemnify Us against any claim, action, demand, suit, proceeding, losses, damages, expenses and costs (including, without limitation, court costs and reasonable legal fees) arising out of or in connection with a third party alleging that any of Your Data infringes or misappropriates such third party's intellectual property rights, or arising from Your use of the Services or Third-Party Services in violation of the Agreement, the Documentation, Order Form, Service Plan descriptions or applicable law (each a "Claim Against Us") provided We (a) promptly give You written notice of the Claim Against Us, (b) give You sole control of the defense and settlement of the Claim Against Us (except that You may not settle any Claim Against Us unless it unconditionally releases Us of all liability), and (c) give You all reasonable assistance, at Your expense.
11.3 Exclusive Remedy This Section 11 states the indemnifying party's sole liability to, and the indemnified party's exclusive remedy against, the other party for any type of claim described in this Section 11.
12. LIMITATION OF LIABILITY
12.1 Limitation of Liability In no event shall the total aggregate liability of either party together with all of its Affiliates arising out of or related to this Agreement exceed the total amount paid by You and Your Affiliates hereunder for the Services giving rise to the liability in the twelve months preceding the first incident out of which the liability arose. The foregoing limitation will apply whether an action is in contract, tort (including negligence), breach of statutory duty, restitution or otherwise and regardless of the theory of liability, but will not limit Your and Your Affiliates' payment obligations under the "Billing, Plan Modifications and Payments" section above nor the indemnity obligations in section 11 above.
12.2 Exclusion of Consequential and Related Damages In no event will either party or its Affiliates have any liability arising out of or related to this Agreement for any lost profits, data, expected savings, revenues, goodwill (in each case whether direct or indirect), nor for any other indirect, special or incidental, consequential loss, costs or damages, whether an action is in contract, tort (including negligence), breach of statutory duty, restitution or otherwise, and regardless of the theory of liability, even if a party or its Affiliates have been advised of the possibility of such damages or if a party's or its Affiliates' remedy otherwise fails of its essential purpose.
12.3 Nothing in this Agreement excludes or limits a party's liability for (a) death or personal injury caused by that party's negligence; (b) fraud or fraudulent misrepresentation or (c) any other liability which may not be properly limited or excluded by applicable law.
12.4 ExclusionsYou assume sole responsibility for results obtained from the use of the Services by You and for conclusions drawn from such use. We shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to Us by You in connection with the Services or any actions taken by Us at Your direction.
13. CANCELLATION AND TERMINATION
13.1 Term of Agreement This Agreement commences on the date You first accept it and continues until all subscriptions hereunder have expired or have been terminated.
13.2 Term of Purchased Subscriptions The term of each subscription shall be as specified in the applicable Order Form or Service Plan. Except as otherwise specified in an Order Form or Service Plan, subscriptions will automatically renew for additional periods equal to the expiring subscription term or one year (whichever is shorter), unless either party gives the other notice of non-renewal at least 15 days before the end of the relevant subscription term. We will provide You advance notice of different pricing of at least 30 days prior to the applicable renewal term. Except as expressly provided in the applicable Order Form or Service Plan, renewal of promotional or one-time priced subscriptions will be at Our applicable list price in effect at the time of the applicable renewal. Notwithstanding anything to the contrary, any renewal in which subscription volume for any Services has decreased from the prior term will result in re-pricing at renewal without regard to the prior term's per-unit or per-volume pricing.
13.3 Termination A party may terminate this Agreement for cause (a) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, (b) the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986, or (c) the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party, (d) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party, (e) an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party, (f) the holder of a qualifying floating charge over the assets of that other party has become entitled to appoint or has appointed an administrative receiver, (g) a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party, (h) a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party's assets and such attachment or process is not discharged within 14 days, (i) any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 13.3(b) to 13.3(h) (inclusive); or (j) the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
13.4 Refund or Payment upon Termination If this Agreement is terminated by You in accordance with Section 13.3 (Termination), We will refund You any prepaid fees covering the remainder of the term of all Order Forms and Service Plans after the effective date of termination. If this Agreement is terminated by Us in accordance with Section 13.3, You will pay any unpaid fees covering the remainder of the term of all Order Forms and/or Service Plans, without however limiting Our right to claim actual damages if higher. In no event will termination relieve You of Your obligation to pay any fees payable to Us for the period prior to the effective date of termination.
13.5 Your Data Portability and Deletion Upon request by You made within 30 days after the effective date of termination or expiration of each Service Plan and/or Order Form, We will make Your Data available to You for export or download as provided in the Documentation. After such 30-day period, We will have no obligation to maintain or provide any of Your Data, and as provided in the Documentation will thereafter delete or destroy all copies of Your Data in Our systems or otherwise in Our possession or control, unless legally prohibited.
13.6 Surviving Provisions The sections titled "Billing, Plan Modifications and Payments," "Proprietary Rights and Licenses," "Confidentiality," "Disclaimers," "Mutual Indemnification," "Limitation of Liability," "Refund or Payment upon Termination," "Your Data Portability and Deletion," "Removal of Third-Party Services," "Surviving Provisions" and "General Provisions" will survive any termination or expiration of this Agreement.
14. CONTRACTING PARTY, NOTICES, GOVERNING LAW AND JURISDICTION
14.1 Contracting Party You are contracting with Yieldr UK Limited. Our registered office is â„… Legalinx Limited, 1 Fetter Lane, London, EC4A 1BR, United Kingdom and our Company Number is 09002780.
14.2 Manner of Giving Notice Except as otherwise specified in this Agreement, all notices related to this Agreement will be in writing, in English, and will be effective upon (a) personal delivery, (b) the second business day after mailing, or (c), except for notices of termination or an indemnifiable claim ("Legal Notices"), which shall clearly be identifiable as Legal Notices, the day of sending by email. Legal Notices should be sent to:
Yieldr UK Limited
1 Fetter Lane
London EC4A 1BR
with a copy to email@example.com
Billing-related notices to You will be addressed to the relevant billing contact designated by You. All other notices to You will be addressed to the relevant Services system administrator designated by You.
14.3 Governing Law and Dispute Resolution This Agreement shall be governed by and construed in accordance with the laws of England and Wales. Any dispute arising out of or in connection with this Agreement, including any question regarding its existence, validity or termination, shall be referred to and finally resolved by arbitration under the rules of the London Court of International Arbitration (the LCIA), which rules are deemed to be incorporated by reference into this clause. The place and seat of arbitration shall be London, England. The language to be used in the arbitration proceedings shall be English. The number of arbitrators shall be one. Notwithstanding this clause, We may bring proceedings in the courts of any state or territory which has jurisdiction for reasons other than the parties' choice for the purpose of seeking an interim injunction, order or other non-monetary relief to protect Our intellectual property rights and/or rights in Confidential Information.
14.4 No Agency For the avoidance of doubt, We are entering into this Agreement as principal and not as agent for any other Yieldr company. Subject to any permitted Assignment under Section 14.4, the obligations owed by Us under this Agreement shall be owed to You solely by Us and the obligations owed by You under this Agreement shall be owed solely to Us.
15. GENERAL PROVISIONS
15.1 Anti-Corruption You agree that You have not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of Our employees or agents in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If You learn of any violation of the above restriction, You will use reasonable efforts to promptly notify Us at firstname.lastname@example.org.
15.2 Changes to the Agreement We may change these terms other documents referenced in the Agreement from time to time. When We do we will revise the date given above and provide You advance notice of this wherever practicable and will notify You of any material change to the terms through the Services or through other reasonable means. It is Your responsibility to review such notified changes and You agree that Your continued use of Our Services after the advance notice period will constitute your acceptance of such revised terms.
15.3 Entire Agreement and Order of Precedence This Agreement is the entire agreement between You and Us regarding Your use of Services and Third-Party Services and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. Except as otherwise provided herein, no modification, amendment, or waiver of any provision of this Agreement will be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. The parties agree that any term or condition stated in Your purchase order or in any other of Your order documentation (excluding Order Forms) is void. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) the applicable Order Form, (2) this Agreement, and (3) the Documentation.
15.4 Assignment Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party's prior written consent (not to be unreasonably withheld); provided, however, either party may assign this Agreement in its entirety (together with any and all Order Forms), without the other party's consent to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Notwithstanding the foregoing, if a party is acquired by, sells substantially all of its assets to, or undergoes a change of control in favor of, a direct competitor of the other party, then such other party may terminate this Agreement upon written notice. In the event of such a termination, We will refund to You any prepaid fees allocable to the remainder of the term of all subscriptions for the period after the effective date of such termination. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
15.5 Relationship of the Parties The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
15.6 Third-Party Beneficiaries There are no third-party beneficiaries under this Agreement and the Contracts (Rights of Third PArties) Act 1999 is hereby excluded.
15.7 No Set-Off Apart from setting off any advance payments You have made, You may not set off against, suspend or make deductions from the amounts You owe.
15.8 Waiver No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right.
15.9 Severability If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, the parties shall negotiate in good faith to amend such part so that, as amended, it is legal, valid and enforceable and, to the greatest extent possible, achieves the intended commercial result of the original provision, and the remaining provisions of this Agreement will remain in effect.